I listened to both days of testimony (here’s a chirpstory of my live-tweeting while listening to the arguments regarding the individual mandate) and have read the transcripts multiple times, and I agree entirely with The Atlantic‘s Topher Spiro:
To be sure, the conservative justices posed a few hypotheticals, the gist of which were: What makes health care different? Why can the government make you buy health insurance, but not broccoli or cars? But that was to be expected. Judges often play devil’s advocate to test the strength of competing positions. What would have been truly shocking is if the justices had not probed for a limiting principle, since it’s become a standard line of questioning.
Consider the arguments before the D.C. Circuit Court of Appeals. Judge Laurence Silberman, who was appointed to the bench by President Reagan, posed a hypothetical too: Can the government make you buy a car? And the questioning that day prompted the headline ”Appeals Court Raises Concern Over Health Law.” But ultimately Judge Silberman, like six other federal appeals court judges, upheld the law.
By the end of the arguments before the Supreme Court, it was clear that Chief Justice Roberts and Justice Kennedy understood why health care is unique. To wit: the uninsured affect costs in a way that doesn’t happen in other markets. Kennedy pointed out that the uninsured “are in the market in the sense that they are creating a risk that the market must account for.”
Later, Kennedy stipulated this truth: that “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” To which he added, “That’s my concern in the case.”
What’s more, the uninsured consume billions of dollars of health care every year — which amounts to substantial commerce. Roberts made this point very clearly: “Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it.”
At another point, Michael Carvin, a lawyer opposing Obamacare, argued that the individual mandate would create commerce, rather than regulate commerce that already exists. But Roberts stepped in: “I don’t think you’re addressing their main point, which is that they are not creating commerce in health care. It’s already there, and we are all going to need some kind of health care; most of us will at some point.”
Spiro points out that almost none of the coverage in the media has focused on the right inquiry — what concerns Roberts and Kennedy most? What questions were posed by Roberts and Kennedy? Everyone is running around like headless chickens, talking about the broccoli mandate. No one gives a crap about the broccoli mandate. This case is not going to be decided on the broccoli mandate.
Wouldn’t it be grand if the media would actually do their job instead of glomming on to the first idiot out of the gate who has something to say?
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